Sunday, April 3, 2016

Massachusetts Earned Sick Time Law: what is it and how does it apply to you?

A new law took effect on July 1, 2015, requiring all employers to provide earned sick time for their employees, including part time and temporary employees.  And unlike many other employment laws, this really means all employers- big or small- and all employees-part time, full time or temporary.

The basics are as follows:

What:  All employees earn an hour of sick time for each 30 hours worked, beginning on the first day of employment, up to 40 hours in a year.

The time begins to accrue immediately, but an employer can limit the use of that time until 90 days (calendar days) after the start of employment.

It’s not just sick time: time off under this law can be for the employee’s own illness, but also for purposes of attending routine medical appointments or taking care of a child or immediate family member, or taking a child or immediate family member to routine medical appointments.

Unlike earned vacation time, unused earned sick time does not have to be paid out to the employee at termination.

Employers must post the notice prepared by the Massachusetts Attorney General in a conspicuous location in the workplace, and provide all employees with a copy.   

Employers of any size may not penalize employees for taking earned time, for complaining that an employer’s practices violate the earned sick time law, or for supporting another employee’s exercise of his or her rights under the earned sick time law.

Who:  Employers with 11 or more employees (note that this means actual people, whether full time, part time, or temporary) must pay the employees for earned sick time that they use, at their regular hourly rate.  Smaller employers still must provide the time, but making it paid time is optional.  The rule against retaliation applies to all employers, whether they are required to provide paid time or not.

Where: Anyone who works in Massachusetts is entitled to the protection of this law, even if the employer is located somewhere outside of Massachusetts (think sales representatives who work from home and on the road, or remote help desk technicians- even though the company may be located elsewhere, the employee providing services in Massachusetts is entitled to the benefits under this law).

Why:  The sponsors of this law successfully made the case to Massachusetts voters in 2014 that the protections of the law were needed to help thousands of working people who faced the choice between going to work sick, sending a sick child to school, or missing an opportunity for routine preventative care for themselves or their child, and losing a day’s pay or perhaps even losing their job.

And here are the implications.

Eleven employees is eleven actual people, not full time equivalents.  This means even fairly small operations must provide paid sick time in accordance with the law.  Unlike laws about employer-sponsored health benefits, you can’t change this count by hiring more people for fewer hours apiece- every person who draws a paycheck counts toward the eleven.

The accrual of earned sick time is proportional to hours worked, but the total amount an employee can accrue is not necessarily.  What does that mean? Over the course of a year, assuming employees work 50 weeks, both a full time employee and an employee who works 25 hours a week can accrue 40 hours of earned sick time.  An employee who works 20 hours a week or less will not accrue the full 40, just because of the rate at which the time accrues, but people should be aware that even someone who might be considered part time at 25 hours a week is entitled to accrue the same total amount of earned sick time for the year.

The earned sick time law is now part of the Massachusetts Wage Act.  Why should you care?  Because it is enforceable by a private lawsuit in the same manner as non-payment of wages, and if a court finds that an employer has violated the sick time law, it is mandatory that the employer be ordered to pay three times the amount of actual damages, and required to pay the employee’s reasonable legal fees and costs.  So if you have an employee who should have been paid for 40 hours of earned sick time at $15 an hour, you won’t just owe him $600, but $1800 plus his attorneys’ fees.

Pay careful attention to the anti-retaliation provision.  This, too carries with it the possibility of triple damages and attorneys’ fees, but it has implications that are even broader than that.  Imagine you are a working parent who has to miss some number of days each year to take your child to routine medical appointments.  Prior to this law, you could be fired for missing too many days of work- being a parent is not a protected class under the anti-discrimination laws, and routine medical appointments do not qualify as a “serious health condition” under the Family and Medical Leave Act (“FMLA”). Now, so long as you are using the time you have accrued under this law, you are protected from being fired, demoted, or disciplined because you used that time.  Or imagine you have a seriously ill child or spouse and need time to take care of them and help get them the care they need, but you work for a company with fewer than 50 employees, or you have worked for your employer for less than a year, meaning the FMLA does not apply to you, even for unpaid, job-protected leave.  The earned sick time law gives you that protection.

Whether you are an employer or an employee, whether you see this law as an important protection for working families or as yet another burden on small businesses, or perhaps a windfall for employment lawyers, it is important to understand your rights and responsibilities under the law, and to realize that it does change the landscape of the employment relationship.

For more information, you can see the Massachusetts Attorney General’s Frequently Asked Questions about the earned sick time law, and download a copy of the required employee notice here.

+slnlaw LLC 

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